Over a month after completing a report for a claimant solicitor, an expert received a list of 26 questions. The question is, who pays?

We had an enquiry recently on the Register helpline seeking guidance on written questions. Over a month after completing a report for a claimant solicitor, the expert received a list of 26 questions. The expert noted that these would obviously take some time to answer because they required quite detailed responses. The expert asked us who would be responsible for paying for this extra work. It is a reasonably common situation so it seemed worth dealing with here. On the assumption that this was a civil case and so covered by the Civil Procedure Rules (CPR) Part 35, the quick answer is that the claimant’s solicitor has to pay. The CPR Part 35 Practice Direction says at section 6:

Questions to Experts

6.1 Where a party sends a written question or questions under rule 35.6 direct to an expert, a copy of the questions must, at the same time, be sent to the other party or parties.
6.2 The party or parties instructing the expert must pay any fees charged by that expert for answering questions put under rule 35.6. This does not affect any decision of the court as to the party who is ultimately to bear the expert’s fees.

Paragraph 6.2 clearly states that the expert needs to seek payment from the solicitor with whom a contractual nexus already exists. It will be the court that will eventually apportion costs between the parties.

And paragraph 6.1 confirms that the expert can discuss such questions with his/her instructing solicitor, who should have received copies of the questions. But why should an expert wish to talk to the instructing solicitor about such questions? CPR 35.6 explains.

35.6 Written questions to experts

1 A party may put written questions about an expert’s report (which must be proportionate) to –

(a) an expert instructed by another party; or
(b) a single joint expert appointed under rule 35.7.

2 Written questions under paragraph (1) –

(a) may be put once only;
(b) must be put within 28 days of service of the expert’s report; and
(c) must be for the purpose only of clarification of the report, unless in any case –

(i) the court gives permission; or
(ii) the other party agrees.

Whether the questions have been ‘properly put’ is a legal issue, and so is a matter for lawyers, not experts, to decide. If the expert’s instructing solicitor agrees to them being answered, then the expert is covered by paragraph 2(c)(ii), and, of course, there is less likelihood of a payment problem down the road! But if the instructing solicitor does not agree, it is for the lawyers to argue the point before involving the expert further.